Divorce - The act of sodomy, forcible sexual intercourse and adoption of unnatural means which are forced upon the other spouse and result for unbearable pain to the extent that one is forced to stay away would certainly be a ground to seek separation or decree of divorce.

The nature of the allegations levelled by the appellant are very serious but the said allegations cannot be proved by any corroborative evidence as the acts of sodomy or unnatural sex or oral sex forcibly committed during difficult periods can neither be witnessed by any other person nor such allegations can always be proved by medical evidence. No doubt such allegations are very easy to level and difficult to prove. A Court has always to be cautious before accepting such allegations but at the same time if on appreciation of evidence and nature of the allegations corroborated by other circumstances, it is established that it is probable that one of the spouses has indulged in above said unnatural acts, the marriage can be dissolved by a decree of divorce. It is not that in every case such allegations levelled would be deemed to be true.

Preeti Kumari Vs. Neelkanth Kumar

Wife aggrieved by the dismissal of her petition for divorce vide impugned
judgment and decree dated August 4, 2014 passed by Additional District Judge,
Bhatinda, has preferred this appeal.

The appellant has pleaded in her petition that she was married to
the respondent on January 21, 2007. One male child Adarsh was born out of the
wedlock who is living with the appellant. A sum of Rs.4 lacs was spent on her
marriage and sufficient dowry had been given to the respondent and his family
members which included gold ornaments weighing 10 tolas and other household
articles. The appellant was treated with cruelty on account of barbarous and
abhorrent obscene obnoxious acts of the respondent. It was averred that at the
time of marriage it was disclosed that the respondent was posted as Engineer in
Dew Soft Company earning a sum of Rs.30000/- p.m. and will accommodate the
appellant for higher studies by incurring necessary expenses but after marriage
it transpired that he was a jobless person not doing any work and was not
working as Engineer in the above said Company. The appellant continued with her
studies in Bhatinda and completed her graduation and PGDCA at Bathinda where a
all the expenses had to be borne by her parents. Even the expenses of the
delivery of the child were borne by the parents of the appellant. The appellant
was taunted by the respondent and his family members for not having brought sufficient
dowry as per their expectations. They connived with each other and started
humiliating her. The appellant was subject to beating on account of her
inability to meet the demand of the respondent and her family members. It has
also been alleged in the petition that the respondent was a drunken man
habitual of taking liquor. He would insist on the appellant to take liquor with
him and on her refusal he would give severe beatings to her. It is averred in the petition that the respondent committed
forcible sexual acts against her wishes and moods even during the painful
period of menses. The respondent after taking liquor committed sodomy forcibly on
account of which painful hue and cry was never cared for and that he continued
with his illegal sexual behaviour. Despite all this, the respondent remained malcontent
and for fulfilling his lust of unnatural sex and abhorrent respondent forced
oral sex on the appellant. When prevented from the painful acts he would give
beatings to the appellant physically and mentally. He persistently committed sodomy and despite the resistance of the
appellant, she was forced to continue with the unnatural behaviour of the respondent.

The respondent contested the petition on the ground that there was
no cause of action. The appellant had come to Bathinda to take examine but did
not return under the influence of her parents. The petition had been filed at
the instance of her parents. Other allegations were also denied. The respondent
denied that any assurance was given that he was posted as Engineer in Dew Soft
Company earning Rs.30000/- per month, rather he was serving as a Marketing
Agent in a private company and was earning sufficient amount for their
livelihood. He was studying and preparing for higher tests. The respondent
admitted that he had promised to accommodate the appellant for higher studies
and pleaded that he had spent sufficient amount on her studies. Allegations of
demand of dowry were denied on the basis of improbabilities claiming that the
family of the respondent was a reputed family and father of the respondent was
Class I officer in Bihar Government but died in the year 2008 during the tenure
of his service. Allegations of consumption of liquor and acts of sodomy were denied.

On the pleadings of the parties, following issues were framed:-

“1.
Whether the respondent has caused physical and mental cruelty to the
petitioner? OPP

2. Whether the petitioner is entitled for decree of divorce?
OPP.

3. Whether the petition is not maintainable in the present form? OPR.

4. Whether the petitioner has no cause of action or filing the
petition? OPR.

5. Relief.”

The lower Court on appreciation of evidence of the
parties including the statement of the appellant in support of her averments as
PW1 and statement of Vishal as PW2, the brother of the appellant and the statement
of respondent himself arrived at a conclusion that the marriage is a sacrament
and not a contract and that a heavy onus lay upon the appellant to establish
the allegations of commission of oral sex and unnatural sex by the respondent
for which no medical evidence or specific instance has been mentioned by her as
such. The lower Court was moved by the factum of respondent having filed a
petition under Section 9 of the Hindu Marriage Act at Bihar and dismissed the
petition.

We have heard counsel for both the parties. During the pendency of
the appeal on April 3, 2017 the appellant had waived of her rights for any
maintenance and requested for divorce by mutual consent but the said proposal
did not materialize.

With the assistance of counsel for both the parties we have gone through
the evidence. The nature of the allegations levelled by the appellant are very
serious but the said allegations cannot be proved by any corroborative evidence
as the acts of sodomy or unnatural sex or oral sex forcibly committed during
difficult periods can neither be witnessed by any other person nor such
allegations can always be proved by medical evidence. It is pertinent to observe here that the respondent is the
resident of Bihar. The appellant belongs to Bathinda. Probability of procuring
medical evidence at a distant place for such allegations in above said
circumstances, is remote. The observation of the learned lower Court in that
aspect is thus not sustainable and deserves to be set aside.

The parties are blessed with a minor child who was born at Bathinda
at the place of parents’ home of the appellant. The pleading that the son of
the appellant is studying at Rose Marry Convent School in Bathinda cannot be
rejected.

The totality of the circumstances available on the record indicate
that the appellant has, on account of unbearable circumstances left the
matrimonial home. No wife having a child would abandon her matrimonial home if
there are no compelling circumstances. The compelling circumstances have been
pleaded by the appellant and also proved by her by producing her affidavit
Ex.PW1/A. The appellant had remained with her husband at Katihar, Bihar uptill
2010. Merely because the respondent has filed a petition under Section 9 of the
Hindu Marriage Act in Bihar is not sufficient enough to arrive at a conclusion
that the respondent has made genuine actual efforts for reunion. The
controversy has been in the evidence of both the parties regarding the
deception that respondent was working as an Engineer with Dew Soft Company. Admittedly he never worked for the said Company. There does not
appear to be any reason for the appellant to name a specific company situated
at a distant place i.e. Bihar unless and until a representation orally or
otherwise had been made by the other party.

Be that as it may, we find that the claim of the appellant has been
wrongly rejected. The act of sodomy, forcible sexual intercourse and adoption
of unnatural means which are forced upon the other spouse and result for
unbearable pain to the extent that one is forced to stay away would certainly
be a ground to seek separation or decree of divorce. No doubt such allegations
are very easy to level and difficult to prove. A Court has always to be
cautious before accepting such allegations but at the same time if on appreciation
of evidence and nature of the allegations corroborated by other circumstances,
it is established that it is probable that one of the spouses has indulged in
above said unnatural acts, the marriage can be dissolved by a decree of
divorce. It is not that in every case such allegations levelled would be deemed
to be true. In the present case there are allegations of demand of dowry,
beating, commission of unnatural sex, creating such circumstances that the
appellant was compelled to leave Bihar 8 years back. The findings of the lower Court on issues No.1 and 2 are thus
reversed. It is held that the appellant had been treated with cruelty by the
respondent. The cruelty established in the present case is mental as well as
physical as such the appeal is allowed. The judgment and decree dated August 4,
2014 passed by Additional District Judge, Bhatinda is hereby set aside. The marriage
of the appellant with respondent is dissolved by a decree of divorce.